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Page last updated at 09:49 GMT, Monday, 2 August 2010 10:49 UK
A power supreme?

By Clive Coleman
BBC Legal Affairs Analyst

A judge sits at the Supreme Court

The United Kingdom Supreme Court has just completed its first year in business.

The Law Lords, as they were known when they were housed in a corridor in parliament and sat as the Appellate Committee of the House of Lords, are now comfortably at home in the expensively refurbished Supreme Court.

The building, just across the square from the Houses of Parliament, stands as a symbol of the separation of powers and the independence of the judiciary. But has the change of venue also seen a change in the role and power of the court?

The Supreme Court
The Supreme Court is in the Middlesex Guildhall on Parliament Square

It has certainly been a busy first year for the United Kingdom's highest court of appeal. Sixty-seven appeals have been heard covering everything from bank charges, the freezing of suspected terrorists' assets and human rights claims by gay asylum seekers.

The varied caseload illustrates the critical role of the court in deciding points of law of general public importance covering all aspects of the life of the citizen.

The new court has made a huge effort to promote transparency and understanding. Thousands of members of the public visit it and its website each month.

Full judgements and summaries of them are easy to find, and uniquely within the UK, the court routinely allows television cameras. Its judgements are frequently screened, though as yet no broadcaster has chosen to follow an entire appeal.

Rise and rise

But is there a real change in the nature of the court?

Before its inception there were many who predicted that the physical separation from parliament and the adoption of the name 'Supreme' would give birth to a more muscular court, more willing to lock horns with a strong executive.

The judiciary have become ever more powerful over the last 30 years. The rise and rise of judicial review means that there is now almost no area of government policy that the courts cannot scrutinize.

Attempts to keep them out by means of "ouster" clauses in acts of parliament have failed.

And so for many, the constitutional clash of our time is that between an all powerful executive, unchecked by weak parliamentary opposition, and an invigorated, independent judiciary.

Unlike its US counterpart, the UK Supreme Court has no specific statutory power to strike down legislation it considers unlawful, but there is in little our constitutional arrangements to stop it taking that power to itself.

Supreme Justices (Back Row L-R) Sir John Dyson, Lord Kerr, Lord Mance, Lady Hale, Lord Brown, Lord Collins, Lord Clarke, (Front Row L-R) Lord Rodger, Lord Hope, Lord Phillips, president of the supreme court, Lord Saville, Lord Walker
There are 12 Supreme Justices, led by Lord Phillips

The president of the court, Lord Phillips, does not entirely discount the possibility.

"If parliament did the inconceivable, we might do the inconceivable as well," he says.

"One is envisaging a situation where a strong majority in parliament enacted a piece of legislation that produced a complete public outcry because it was opposed to some fundamental constitutional principle, then one might say that the Supreme Court might react."

If Lord Phillips thinks it a distant possibility, constitutional law expert and barrister Richard Gordon QC, thinks it far more real.

"I think we'll get an act of parliament in fairly dramatic terms which is probably not human rights compatible," he says.

"In the wake of that act the court may not only grant a declaration that the act is not compatible, but may actually make a coercive order against a government minister, for example to release a suspected terrorist detained without trial, and the government may refuse to obey the order.

"In the words of one judge, it would be interesting to see who blinked first."

Critical role

Some observers see the Supreme Court justices already flexing some muscle in expressing their views outside court.

Insignia for The Supreme Court of the United Kingdom
In its first year the Court heard 67 appeals and gave 62 judgements

Alex Bailin QC has appeared in front of the old Law Lords and the new Supremes.

He points to a lecture by Lord Phillips given just after the election, when the Human Rights Act looked under threat.

"The implication was that if human rights couldn't be formally protected by the Human Rights Act, judges might be prepared to provide that sort of protection by the back door," he says.

And there are also signs that the Supreme Court is becoming more emboldened in its relationship (some say rivalry) with the European Court of Human Rights (ECHR) in Strasbourg.

It is bound to take account of ECHR decisions, but it has shown, for instance in a recent case on hearsay evidence in criminal trials, that there will be no slavish following of Strasbourg caselaw.

Supreme Court Justice Lord Hope, makes it clear that, the court is not obliged to follow what the ECHR says in every case.

"Our task when presented with their judgements is to see whether we can apply them within our system," he says.

"There are instances where we say we can't do that - their principles can't be applied here, or they haven't been sufficiently explained."

The new court does seem subtly unlike its predecessor - more open, more transparent and stronger.

If the executive has become more powerful in recent times as a result of a weak parliamentary opposition and scrutiny, then the new Supreme Court has a critical role to play in our constitutional arrangements. Year two will be fascinating.


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